We have a capital case charged as Intentionally or Knowingly causing the death of 2 people by shooting them during the same transaction. The defense wants a lesser included murder charge as intent to cause SBI and commit an act clearly dangerous to human life. It doesn't seem appropriate since there are different elements.

Basically, can murder under 19.02(b)(2) (intent to cause SBI) be a lesser included to capital murder charged under 19.02(b)(1) (I/K causing death); can the defense get any murder charge as a lesser included to capital?

Any help would be appreciated.

I don't have any case law on this, but it seems to me that if a specific element of capital murder is that a person "commits murder as defined under Section 19.02(b)(1)" (italics mine) then Section (b)(2) is not wholly included in the definition of capital murder and is not a lesser-included offense.

Feldman v. State, 71 S.W.3d 738, 752-53 (Tex. Crim. App. 2002) (where state pleads two theories of capital murder, a requested murder lesser is not needed unless the defendant can point to evidence that he is not guilty of capital murder under both theories pled by the State).

Doesn't Feldman's holding really just talk about alternative theories as it relates to the enhancing paragraph (a different example would be 2 kids under 6 both murdered; you have child under 6 AND 2 murders in the same transaction)? You still have to prove murder under (b)(1) by intentionally or knowingly causing the death of an individual; you don't get to capital murder with definition of murder in (b)(2) that the defense attorney is trying to rely upon.

I think you're right that Feldman is not on point.

However, I guess that sec. 19.02(b)(2) is, in theory, a lesser of sec. 19.03(a). Polk v. State, No. 05-03-01244-CR, 2004 WL 2802505, at *1-2 (Tex.App.- Dallas December 1, 2004, no pet.) (citing Miniel v. State, 831 S.W.2d 310, 317 (Tex. Crim. App. 1992) ("it is obvious that the first part of the analysis has been met")); Barrera v. State, 756 S.W.2d 884, 887(Tex.App. -- San Antonio 1988, pet. ref'd).

So he has to point to evidence that he didn't have an intent to kill. Miniel, 831 S.W.2d at 318 ("The testimony does not indicate that appellant did not have the requisite intent to kill the decedent.").

When the evidence shows that a deadly weapon was used in a deadly manner, “the inference is almost conclusive that [the defendant] intended to kill.” Godsey, 719 S.W.2d at 581.

How does the evidence show that he is guilty "only of" simple murder?